The Prothonotary of the Supreme Court of New South Wales v London

[2023] NSWSC 1252

Supreme Court

New South Wales

Medium Neutral Citation:

The Prothonotary of the Supreme Court of New South Wales v London [2023] NSWSC 1252

Hearing dates:

25 October 2023

Date of orders:

30 November 2023

Decision date:

30 November 2023

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. A declaration that the defendant is guilty of contempt of the Local Court of New South Wales in that, on 16 June 2021, he, who had been served with a subpoena to attend the Local Court at Burwood to give evidence for the prosecution in criminal proceedings, wilfully refused to attend the Court on that date to give evidence.

2. An order that the defendant be committed to a correctional centre for a period of 6 months to commence on 30 November 2023 and expire on 29 May 2024.

Catchwords:

CONTEMPT – sentence – refusal to give evidence in proceedings against former correctional officer – where correctional officer was charged with contraband offences and engaging in an intimate and sexual relationship with the defendant – refusal to give evidence resulted in withdrawal of contraband offences and allegation of sexual relationship – where defendant was seriously assaulted two days before he was due to give evidence – where defendant refused to give evidence due to fears for his own safety – little evidence of defendant’s subjective circumstances – not entitled to leniency on the basis of his criminal record and the large number of prison offences – significance of deterrence and denunciation in contempt proceedings – plea of guilty and evidence of remorse – where defendant serving existing sentence in circumstances where parole revoked not referable to contempt – totality – when contempt sentence should commence - sentence to commence on day of decision

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW) ss 7, 8

Crimes Act 1900 (NSW) ss 193B, 193C

Crimes (Administration of Sentences) Act 1999 (NSW) ss 236Q, 253G

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13

Crimes (Sentencing Procedure) Act 1999 (NSW)

Evidence Act 1995 (NSW) s 65

Supreme Court Rules 1970 (NSW) pt 55 r 13

Weapons Prohibition Act 1998 (NSW) s 7

Cases Cited:

Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6

Commissioner for Police Integrity Commission v Walker [2006] NSWSC 964

Council of the New South Wales Bar Association v Rollinson [2022] NSWSC 407

Dowling v The Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340

Howard v R [2019] NSWCCA 109

R v Dunbabin; Ex Parte Williams (1935) 53 CLR 434; [1935] HCA 34

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

Registrar of the Court of Appeal v Gilby [1991] NSWCA 235

Registrar of the Court of Appeal v Mainiam (No 2) (1992) 26 NSWLR 309

Registrar of the Court of Appeal v Raad [1992] NSWCA 207

Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593

Smith v The Queen ((1991) 25 NSWLR 1

Wood v Galea (1997) 92 A Crim R 287

Wood v Staunton (No 5) (1996) 86 A Crim R 183

Yildiz v R [2020] NSWCCA 69

Texts Cited:

Nil

Category:

Principal judgment

Parties:

The Prothonotary of the Supreme Court of NSW
(Plaintiff)
Corey London (Defendant)

Representation:

Counsel:
D Kell SC & J Caldwell (Plaintiff)
T Spohr (Defendant)

Solicitors:
Crown Solicitors Office (Plaintiff)
J Sutton & Associates (Defendant)

File Number(s):

2022/265468

Publication restriction:

Nil

Judgment

1. On 8 June 2023, the defendant pleaded guilty to a charge of being in contempt of the Local Court of New South Wales by failing to give evidence on 16 June 2021 when he had been subpoenaed to do so. He now comes to be sentenced for that contempt.

Background

2. In 2019 and 2020 Melissa Maree Goodwin was a correctional officer working at the Metropolitan Remand and Reception Centre at Silverwater. The defendant was a prisoner being held at the MRCC.

3. On 25 May 2020, Ms Goodwin was charged with the following offences by way of a Court Attendance Notice:

Sequence 1:   A common law offence of misconduct by a holder of public office. This sequence was subsequently withdrawn on or about 18 November 2020.

Sequence 2: Engaging in an intimate and sexual relationship with an inmate contrary to s 236Q(1)(a) of the Crimes (Administration of Sentences) Act 1999 (NSW) (“the CAS Act”). The offence involved Ms Goodwin engaging in an intimate and sexual relationship with the defendant between 21 November 2019 and 17 April 2020.

Sequences 3 and 4: Delivering without lawful authority anything to an inmate contrary to s 253G(2)(a) of the CAS Act. Sequence 3 involved delivering a packet of White Ox tobacco and two cigarette lighters to the defendant and sequence 4 involved delivering a packet of Extra chewing gum to the defendant, both offences occurring between 21 November 2019 and 21 January 2020.

4. Prior to Ms Goodwin being charged, the defendant had provided a statement to police which led to the charges being laid. However, an investigation into Ms Goodwin had commenced prior to the defendant’s statement being obtained. The statement was an induced one whereby, it seems, the defendant was not to be prosecuted for any information he provided. There is an assertion in a letter from solicitors acting for the defendant in 2021 at the time of the hearing of the charges against Ms Goodwin, that the statement was obtained after a threat by the police to the defendant concerning the defendant’s mother. In the absence of any other evidence about this allegation, I have disregarded it. The significant point is that the investigation and prosecution of Ms Goodwin was not instigated by anything the defendant said or did apart, of course, from his having had some sort of relationship with her.

5. On or about 18 November 2020, the proceedings against Ms Goodwin were listed for mention in the Local Court at Burwood. Sequence 1 was withdrawn. Ms Goodwin entered a plea of guilty to sequence 2 on the basis that there was a dispute as to facts, and Ms Goodwin entered pleas of not guilty to sequences 3 and 4. By her plea to sequence 2, Ms Goodwin accepted that she engaged in an intimate relationship with the defendant, but she disputed that she had engaged in sexual conduct with him. Accordingly, the matter was adjourned to 16 June 2021.

6. On that day, the defendant was transported to Burwood Local Court and placed in the court cells. A solicitor, Ms Dempsey, appeared for the defendant.

7. When the matter was called, Magistrate Reiss indicated that he understood the defendant was refusing to come up from the cells to court. Ms Dempsey confirmed that the defendant was refusing to come into the courtroom and give evidence. She informed the Magistrate that she had given advice to the defendant that if he refused to come to court to give evidence he would be cited for contempt of court and that this could result in a custodial sentence. On the day concerned, the defendant was told on four occasions by Correctional staff that he was required to go to the courtroom, but on each occasion he said that he would not go up to the court. The Magistrate then referred the defendant to this Court to be charged with contempt.

8. Following the defendant’s refusal to give evidence, the prosecution sought to tender the defendant’s statement previously made, on the basis that the defendant was an unavailable witness within the terms of s 65 of the Evidence Act 1995 (NSW). That application was opposed by counsel for Ms Goodwin, and the tender was rejected by the Magistrate. The proceedings were then adjourned to 1 July 2021 to allow the prosecution to consider its position.

9. On 18 June 2021, at the request of counsel for the Crown and the officer in charge of Ms Goodwin’s investigation, two NSW police officers visited the defendant at Junee Correctional Centre to ascertain whether he had changed his mind about giving evidence in the proceedings. He twice told the officers that he would not do so.

10. Thereafter, the prosecution proceeded on the basis that it was not in a position to prove beyond reasonable doubt that Ms Goodwin had engaged in sexual conduct with the defendant or that she had provided him with contraband, because the evidence of the defendant was essential to proving those matters. There was no other direct evidence of those matters.

11. On 1 July 2021, the prosecution advised the Local Court at Burwood that there was no longer any dispute as to the facts on sequence 2, and that there would be no further proceedings in respect of sequences 3 and 4. The Court Attendance Notice for sequence 2 was amended to remove the allegation that Ms Goodwin and the defendant had a sexual relationship. A statement of facts was tendered which stated that the intimate relationship between Ms Goodwin and the defendant “did not include a sexual relationship or any sexual acts”.

12. Ms Goodwin was convicted of sequence 2 and sentenced to a community correction order for 12 months on the condition that she carry out 100 hours of community service work. In sentencing Ms Goodwin, the Magistrate said:

I would put [the offending] at the lower end, well below mid-range in that it did not involve any sexual conduct of any kind.

The contempt proceedings

13. On 6 September 2022, the Prothonotary filed the summons in the present proceedings. The proceedings were mentioned on five occasions between September and November 2022, during which period the defendant was unrepresented. On 1 December 2022, following a notice of motion filed by the defendant, Yehia J made an order referring him to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

14. On 9 December 2022, the defendant’s present counsel, Mr Thomas Spohr, accepted the pro bono referral, and shortly thereafter Mr John Sutton agreed to act as the defendant’s solicitor on a pro bono basis. On 30 January 2023, the matter was listed for mention, and was stood over for two weeks for solicitor and counsel to obtain further instructions.

15. On 13 February 2023, the matter was listed for mention. Mr Spohr advised the Registrar that an application would be made for a suppression order in the proceedings. There was then some delay until the defendant’s motion for orders under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) was filed. However, on 5 May 2023, that application was refused by Fagan J on the basis that non-publication orders could not be said to be “necessary” as required by s 8 of that Act, because of the notoriety of the proceedings up to that point.

16. A further adjournment was then sought on behalf of the defendant. The Registrar granted the adjournment but ordered the plaintiff to serve draft agreed facts by 25 May 2023. On 25 May 2023, the Prothonotary served draft agreed facts on the defendant. On 2 June 2023, Mr Sutton advised the Crown Solicitor that the defendant was willing to enter a plea of guilty, subject to appropriately worded facts.

17. When the matter was before the Court on 21 July 2023, the agreed facts were settled and signed by the parties, and counsel for the defendant confirmed that the defendant would be pleading guilty to the charge.

Legal principles

18. Part 55 r 13 of the Supreme Court Rules 1970 (NSW) (“SCR”) deals with punishment for contempt of court. That Rule provides:

13 Punishment

(1)    Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both.

cf HCR, O 56, r 9.

(2)   Where the contemnor is a corporation, the Court may punish contempt by sequestration or fine or both.

(3)   The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.

19. In this Court, contempt is a common law offence for which there is no maximum penalty: R v Dunbabin; Ex Parte Williams (1935) 53 CLR 434 at 442; Registrar of the Court of Appeal v Mainiam (No 2) (1992) 26 NSWLR 309 at 314.

20. Contrary to what had previously been thought, the Court of Appeal in Dowling v The Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 held that the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) do not apply to the imposition of a penalty for contempt. Accordingly, a non-parole period cannot be imposed, nor can non-custodial penalties such as conditional release orders, community correction orders or intensive correction orders be made. However, a prison sentence may be suspended: SCR pt 55 r 13(3), and see Council of the New South Wales Bar Association v Rollinson [2022] NSWSC 407 at [90] and [107].

21. The courts have emphasised the serious nature of a contempt of this type. In Registrar of the Court of Appeal v Gilby [1991] NSWCA 235, the Court of Appeal (Mahoney, Priestley and Clarke JJA) said:

If in a criminal proceeding a person refuses to give evidence when he should, he causes harm to other persons in his community: at least they are liable to suffer harm because of what he has done. It is, as we have suggested, a requirement of the law that, in general, a person give evidence when properly called upon to do so, in order that criminals may be convicted. If criminals are not going to be convicted, they are less likely to be pursued and arrested. And, if they are not to be pursued or arrested, then the individual members of the community will suffer from what criminals will do.

22. In Smith v The Queen (1991) 25 NSWLR 1 Kirby P, although in dissent as to the outcome but not the conviction, followed Gilby, saying at 10:

These are good reasons for adhering to the rule that to refuse to be sworn (or to affirm) or to give evidence such as occurred here amounts to a serious contempt in the face of the court. It is serious because courts decide cases on the basis of evidence. If evidence is unjustifiably withheld, the administration of justice is impeded: see Registrar of Court of Appeal v Gilby (at 2).

23. Thereafter, in Registrar of the Court of Appeal v Raad [1992] NSWCA 207 Kirby P said:

The refusal to answer questions which are relevant and admissible strikes at the very way in which justice is done in the courts of this country. It undermines the rule of law observed in our society. As this Court said in Gilby, the refusal to be sworn, or once sworn to give evidence, is a failure to discharge the obligation which the person owes as a member of the community or because he or she is within it. It is a concomitant of a society ruled by law and not by brute force that a person competent to do so should, where required, be sworn or affirmed to give truthful evidence and that he or she should give evidence when called upon to do so in the courts in answer to questions lawfully addressed.

24. The matters usually taken into account in assessing proper punishment for contempt, particularly contempt of this sort, were set out by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 as follows:

I have been referred to a number of cases concerning the principles relating to punishment for contempt of court, including the failure to attend and the failure to give evidence, and the cases are usefully summarised in the judgment of Wood v Galea supra at 5 to 11. See also R v Montgomery [1995] 2 All ER 28, where essentially similar principles have been laid down in the English Court of Appeal.

Those cases show that relevant matters for consideration in assessing the proper punishment for this type of contempt include: 1. the seriousness of the contempt proved; 2. whether the contemnor was aware of the consequences to himself of what he did; 3. the actual consequences of the contempt on the relevant trial or inquiry; 4. whether the contempt was committed in the context of serious crime; 5. the reason for the contempt; 6. whether the contemnor has received any benefit by indicating an intention to give evidence; 7. whether there has been any apology or public expression of contrition; 8. the character and antecedents of the contemnor; 9. general and personal deterrence; and 10. denunciation of the contempt.

Subjective matters

25. There was little evidence about the background or subjective circumstances of the defendant. Although the defendant filed and read an affidavit, what was contained in that affidavit was addressed to the defendant’s failure to give evidence. He claimed in the affidavit not to understand what a subpoena was, and he said he could not give a full explanation of his reasons for not coming to Court to give the evidence. However, he apologised to the Court and said that he now understands that his “choice not to come into Court” had an effect on what happened in the charge against Ms Goodwin.

26. The affidavit also detailed the difficulties that the defendant has had in custody. He has been placed in segregation and he said that this has affected his mental health. He said at the end of August 2023 he was suicidal and tried to commit suicide by cutting his throat in front of officers from the wing. He said that every day whilst he is in gaol he is always looking over his shoulder, worrying that someone is going to jump him because of what happened.

27. There can be no doubt that the defendant’s apprehension for his safety is well founded, but whether that relates solely to his involvement in Ms Goodwin’s prosecution is a live issue.

28. On 14 May 2021, two days before the defendant was due to give evidence, he was seriously assaulted at the Mid North Coast Correctional Centre, when his jaw was dislocated and he lost a tooth. His solicitor, who has long experience both as a solicitor and a police officer previously, gave evidence that any person in prison who gives evidence against another person or even makes an allegation against them privately places themselves at risk of serious physical harm. This is a matter so well known that the Courts can take judicial notice of the fact.

29. The information that is available about the defendant is that he was born in January 1999, so that at the time of refusal to give evidence he was aged 22 years and is now aged 24 years.

30. He first came before the Courts at the age of 17 for having custody of a knife in a public place. The following year he was convicted of three counts of break and enter, possessing housebreaking implements, resisting an officer in the execution of duty, having goods in personal custody suspected of being stolen, and possessing a prohibited drug. All of those offences came before the Parramatta Drug Court in 2017 where he received an aggregate sentence for those offences of 2 years 3 months’ imprisonment.

31. On 11 May 2020, he was sentenced at Penrith District Court on two counts of robbery whilst armed with a dangerous weapon to an aggregate sentence of 6 years’ imprisonment commencing 7 February 2019 and concluding on 6 February 2025 with a non-parole period of 3 years 6 months concluding 6 August 2022.

32. On 13 April 2022, he was sentenced for assault occasioning actual bodily harm in company to imprisonment for 1 year and 6 months commencing on 6 August 2022 (the date of expiry of his parole for the armed robberies) and concluding 5 February 2024, with a non-parole period expiring 5 April 2023. That offence was committed on 19 May 2020 whilst he was in custody.

33. Whilst in custody during various periods from August 2017 until the present time he has incurred more than 70 breaches of discipline and institutional behaviour. It is apparent from the material from Corrective Services that the defendant has had an ongoing drug problem from the time he commenced offending. The material also discloses mental health issues, most clearly demonstrated by his attempt on his own life by slashing his throat whilst in a prison van.

Relevant considerations

34. I will now consider the matters identified by Dunford J in Wood v Staunton (No 5).

1. The seriousness of the contempt proved

35. As the authorities set out above make clear, a refusal to give evidence is a serious contempt in the face of the Court because the administration of justice is thereby impeded.

1. Whether the contemnor was aware of the consequences of his actions

36. During the hearing, the solicitor appearing for the defendant informed the Magistrate that he was refusing to come up to the Court. The Magistrate then said:

Ms Dempsey, Correctives are saying they can’t bring him up with him refusing, unless perhaps you have a word with him again, if you can convey to him that he will be in [sic] cited for contempt of court if he declines to come to court now that he’s been called and he’s in the precinct. If he declines to come up he’ll be cited for contempt and that’ll go forward for further action subsequently that could result in custodial outcomes. All right, so if you go have a word with him.

37. Subsequently, Ms Dempsey advised the Magistrate that she had told the defendant that he could be cited for contempt and receive a custodial sentence, but the defendant still refused to come up.

38. The Magistrate then referred the defendant for contempt and gave Ms Dempsey a further opportunity to speak with him to see if he wished to change his position. Ms Dempsey subsequently advised the Magistrate that she had informed the defendant that he had been charged with contempt and that the matter would be dealt with in the Supreme Court, but that he still refused.

39. The evidence also disclosed that, prior to attendance at the court on 16 June 2021, the defendant had had a conference with a solicitor for the DPP who had the carriage of the proceedings against Ms Goodwin. Conference notes disclosed the following (where CL is the defendant and TM is the solicitor):

•   CL:   I'm not getting up in court, he's gonna make my life hell, if you want to subpoena me whatever, but not gonna do it

•   TM:   so you won't give evidence in court, why?

•   CL:   because mate...

•   TM:   referring to your statement, you go on to describe a number of sexual interactions

•   CL:   can I get my own lawyer?

•   TM:   you are entitled to get your own lawyer.

•   CL:   I might get more jail time, it'll be bad for me, I want to scratch the statement

•   TM:   you won't get jail time for this statement

•   CL:   I mean not giving evidence

…

•   CL:   it's the exact same thing as her knowing, I just don't want to do it at all, it's better for me, if the judge wants to give more time then sweet

40. I am satisfied from that material that the defendant was aware of the consequences to himself in refusing to give the evidence.

1. The actual consequences of the contempt on the relevant trial

41. This has been set out earlier. Because the defendant refused to give the evidence, sequences 3 and 4 had to be abandoned and the Crown was not able to prove in regard to sequence 2 that Ms Goodwin and the defendant had a sexual relationship. In relation to sequence 2, the objective seriousness was found to be well below the mid range.

1. Whether the contempt was committed in the context of serious crime

42. The maximum penalty for both the contraband offences and the offence against s 236Q is 2 years’ imprisonment and/or a fine of 20 penalty units. Given what was sought to be smuggled in to the defendant (tobacco and chewing gum), the offence against s 236Q was more serious than the contraband offences. However, when set against the full gamut of criminal offences, all of the offences charged against Ms Goodwin can be said to be at the low end of seriousness.

1. The reason for the contempt

43. A relevant consideration for this matter is whether the contempt was motivated by a fear of harm, had the contemnor given evidence: Wood v Galea (1997) 92 A Crim R 287 at 291; Commissioner for Police Integrity Commission v Walker [2006] NSWSC 964 at [64].

44. The evidence points strongly to this being the motivating factor as far as the defendant is concerned. I have earlier referred to the assault of the defendant on 14 May 2021. That assault resulted in the defendant losing a tooth and having his jaw dislocated. The injuries were such that he was taken to an external hospital from the prison where he was being held at the time.

45. Subsequently, a solicitor from the Office of the Director of Public Prosecutions had a conference with the defendant about the forthcoming proceedings. Those conference notes disclose that the defendant told the solicitor:

I’m not getting up in court, he’s gonna make my life hell, if you want to subpoena me whatever, but not gonna do it … You don’t know what he’s gonna do to me, I have a broken jaw, I got out of hospital 6 days ago, dumbest thing, I told him mate I don’t know what you’re talking about, no way I’m getting up in court to give evidence … I’m this close to getting out, I’m not putting myself and my friends in danger, shouldn’t have done it in the first place, but it’s bound to come out.

46. Whilst it is fair to say that the defendant was scarcely a model prisoner, with a large number of institutional breaches of discipline including assaults and possession of an offensive weapon, I am satisfied on the balance of probabilities that it is likely that the defendant was assaulted on that occasion because of his involvement in the prosecution of Ms Goodwin. I am also satisfied that he held genuine fears for his own safety subsequently if it became known that he had made a statement and was intending to give evidence against Ms Goodwin. Those fears would also not be unrelated to the fact that Ms Goodwin appears to have commenced a relationship with a member of the Rebels outlaw motorcycle gang after she was stood down from her position as a prison officer.

47. It should also be noted that Ms Goodwin’s relationship with the Rebels bikie and the defendant’s reaction to the news of that relationship, as reported in a newspaper article at the time, demonstrate clearly that the defendant’s refusal to give evidence in the case was not motivated by any desire to assist Ms Goodwin.

1. Whether the contemnor has received any benefit by indicating an intention to give evidence

48. There is no evidence that any benefit was received.

1. Whether there has been any apology or public expression of contrition

49. As mentioned earlier, the contemnor in his affidavit said:

6.   I can’t give a full explanation of my reasons for not coming into the court on 16 June 2021. However, I am sorry for the problems that I caused, and I understand that it was serious.

7.   I apologise to the Court. Even though it might not matter to other people, I really, truly am sorry for what happened.

50. The Prothonotary did not take issue with the defendant’s apology and added that his plea of guilty may be seen as some evidence of remorse.

1. The character and antecedents of the contemnor

51. The limited information concerning the contemnor has been canvassed earlier. His criminal record including the very large number of breaches of prison discipline entitles him to no leniency.

1. General and personal deterrence

52. General deterrence is a matter of considerable importance in sentencing for a contempt of this nature. As the authorities make clear, a refusal to give evidence when required to do so interferes with the administration of justice. Personal deterrence is of some significance by reason of the contemnor’s criminal record and failures to comply with prison rules.

1. The need for denunciation of the contempt

53. The importance of members of the community, whether prisoners or not, complying with subpoenas and orders to give evidence in court cannot be over-emphasised. The administration of justice would be severely undermined if people could decide for themselves whether or not they assist in the administration of justice by giving evidence when they are required to do so.

Objective seriousness

54. Having regard to the above considerations relevant to the objective seriousness of the offending, I would rate the seriousness of this contempt within the mid-range of objective seriousness.

The guilty plea

55. The procedural history of the proceedings has been set out earlier. It is not reasonable to expect the defendant to have entered a guilty plea prior to the time that he had legal representation. Whilst there was some delay after he obtained legal representation, caused by the application for a suppression order, counsel for the defendant was able to indicate that the defendant would plead guilty, subject to appropriately worded agreed facts, within a short time of the draft agreed facts being provided to the defendant by the Prothonotary.

56. In all the circumstances, I consider that the defendant’s plea was made at the earliest opportunity and, analogously with the approach discussed in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, I would provide a discount for the plea of 25% for the facilitation of the course of justice: Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 at [14].

Remorse

57. The defendant’s plea at what I have determined is an appropriately early stage in the proceedings, together with his unchallenged apology contained in his affidavit, satisfies me on the balance of probabilities that the defendant is remorseful.

Particular matters raised by the defendant

The defendant’s youth

58. The defendant submitted that consideration should be given to the fact that he is a young man aged 24 years, who was aged 22 at the time the contempt was committed. He submitted that cases such as Yildiz v R [2020] NSWCCA 69 and Howard v R [2019] NSWCCA 109 were relevant because the contempt can be seen to arise from his immaturity.

59. I do not consider that the principles discussed in those and similar cases have any application to the present offending. There was nothing about the present offending which indicates any impulsive behaviour on the defendant’s part, nor that it resulted from his immaturity. His decision to refuse to give evidence was a calculated one, albeit because he had weighed up the dangers to himself flowing, no doubt, from the assault on him, and the fears he justifiably held, partly no doubt, because of Ms Goodwin’s new partner.

Extra-curial punishment

60. The defendant also submitted that account should be taken of the extra-curial punishment that the defendant has experienced. It was suggested that there are three aspects to the extra-curial punishment. The first was the actual violence that the defendant had experienced coupled with the fears he has on an ongoing basis for his safety. The second aspect was said to be extensive media coverage of his relationship with Ms Goodwin and the charges against her. The third aspect was said to be the harsh and onerous conditions of imprisonment that the defendant was undergoing.

61. In Silvano v R [2008] NSWCCA 118 James J (with whom Hislop and Hoeben JJ agreed) said:

[26]   Counsel contended in written submissions that the injuries inflicted on the applicant came within the principle which I stated in R v Daetz; R v Wilson (2003) 139 A Crim R 398 at 411, that:

A sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence.

…

[29]   The principle stated by me in Daetz which was relied on by counsel for the applicant and which I have already quoted, was stated by me in the context of determining whether a sentencing court can properly take into account “extra-curial punishment”, that is loss or detriment imposed on an offender by persons other than the sentencing court, for the purpose of punishing the offender for his offence or at least by reason of the offender having committed the offence. Cases in which such extra-curial punishment occurred include the cases of R v Allpass (1993) 72 A Crim R 561 and R v Clampitt-Wotton (2002) 37 MVR 340, both of which are referred to in Daetz, and Daetz itself.

62. In relation to the violence inflicted on the defendant and his fear of further violence, the important thing to note is that this violence was inflicted, not as punishment for his having committed the contempt, but in fact to bring about the situation where he committed the contempt. That is, the violence was directed to stop him giving the evidence, and not to punish him for not having given the evidence, which is the basis for the contempt charge. The violence and his fear of further violence are obviously relevant matters to take into account (see consideration number 5 from Wood v Staunton (No 5)), but they do not constitute extra-curial punishment.

63. Secondly, of the news items in evidence, only one of these had any contemporaneity to the hearing of the case against Ms Goodwin. That was an article on news.com.au dated 16 June 2021 which, to the extent that it dealt with the hearing against Ms Goodwin, simply reported the matter in an unexceptionable manner.

64. Two other articles were dated 30 May 2020 (one year before the case was heard) and 24 September 2022 (15 months afterwards). Both of these articles dealt with Ms Goodwin and her relationship with both the defendant and her new partner, Caleb Valeri. A further article dated 16 July 2023 related to the fact that the defendant had been returned to custody after allegedly threatening to shoot his father.

65. The media reports about the defendant do not constitute extra-curial punishment.

66. The third matter concerns the defendant’s conditions in custody.

67. It seems that a rotation plan was commenced for the defendant on 25 October 2022. That was some 16 months after Ms Goodwin’s court case. Its only apparent temporal relationship to the contempt charge is that it commenced one month after the summons was filed. There are other notations in the defendant’s inmate profile documents which refer to the Department’s request for protection for the defendant in May and October 2022. There is no other evidence about what prompted the Department’s requests.

68. An examination of the defendant’s profile documents demonstrates his very poor behaviour whilst in custody. The documents indicate that from time to time he has been placed in segregation or under other restrictions because of his own behaviour representing a threat to the good order and discipline of the gaol. His behaviour has involved assaults of other inmates.

69. The evidence has been left in too unclear a state to draw any conclusion that the defendant’s conditions in custody, including his rotation through custodial institutions, is related or solely related to circumstances associated with Ms Goodwin’s charges and his involvement in them.

Imposing an expired sentence

70. The defendant, whilst accepting that the appropriate sentence for the contempt was one of imprisonment, submitted that the appropriate sentence would be one that has already expired for five reasons. Those reasons are the harsh conditions in which the defendant has served his imprisonment, the circumstances in which the contempt occurred, the plea of guilty, his subjective features including his comparative youth, and the fact that there is only limited need for specific deterrence.

71. The first four of those matters have been dealt with already in my reasons. A discount of 25% has been given for the plea. I do not consider the conditions in which the defendant has served his sentence are solely referrable to the matters surrounding the contempt charge. The only aspects of the subjective features in evidence do not assist the defendant. He clearly suffers from drug and mental health issues, but whether those matters are a result of his background and upbringing is not known. Nor is it known whether his mental health issues are separate from his ongoing drug use. His age does not mitigate the offending or the sentence.

72. As to the fifth matter, specific deterrence is not an irrelevant consideration as I noted earlier at [52]. It may be accepted that it is unlikely, although not impossible, that a similar situation will arise in the future where the defendant is called upon to give evidence, perhaps for some matter that arises whilst he is in custody. His criminal record generally and his prison behaviour also suggest that specific deterrence from generally committing offences is of some significance in the matter.

73. In my opinion, it would be quite inappropriate to impose a prison sentence to punish the defendant for his contempt, but to do so in a way that would not require the defendant to serve any additional period of imprisonment from that which he has been undergoing for offences quite unrelated to the contempt. The suggestion that to do so would still send a clear message to others who might be tempted to refuse to give evidence when they are required to do so, takes no account of the fact that this defendant would not thereby suffer any actual punishment for his contempt. Further, the precedent of imposing a sentence which had effectively expired would be likely relied upon as a justification for the same approach in other cases.

Totality and the sentence to be imposed

74. The matter which assumes the greatest importance when imposing the appropriate sentence in the present case is the reason for the defendant’s refusal to give evidence. I have determined that he was assaulted because it was thought that he would be giving evidence against Ms Goodwin. I accept also that the defendant has had a legitimate apprehension that he might again be assaulted because of his involvement in Ms Goodwin’s charges. However, his entirely unsatisfactory prison record makes it likely that his apprehension of further violence towards himself and the segregated conditions he has endured from time to time are also connected with his general behaviour in prison.

75. In my opinion, taking into account all of the relevant considerations, the appropriate sentence is 8 months’ imprisonment. That will be reduced by 25% for his early plea, so that the discounted sentence will be imprisonment for 6 months.

76. As I noted earlier, on 11 May 2020 the defendant was sentenced to an aggregate sentence of 6 years’ imprisonment commencing 7 February 2019 and expiring 6 February 2025 with a non-parole period of 3 years 6 months expiring 6 August 2022. However, on 13 April 2022 he was given a prison sentence of 1 year 6 months commencing 6 August 2022 and expiring 5 February 2024 with a non-parole period of 8 months expiring 5 April 2023.

77. The defendant was released to parole on 5 April 2023, but on 1 May 2023 he was charged with five offences being three counts of stalk/intimidate with intent to cause fear or physical harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), one count of possessing or using a prohibited weapon without a permit contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW), and one count of recklessly dealing with the proceeds of crime with a value of over $5,000 contrary to s 193B(3) of the Crimes Act 1900 (NSW).

78. As a result of these charges, the defendant was taken back into custody on 2 May 2023 and has remained in custody since that time. In addition, on 17 May 2023 the defendant’s parole was revoked. His next parole review hearing is listed for 18 January 2024. Subsequently, the charges contrary to the Crimes (Domestic and Personal Violence) Act were withdrawn. The remaining two charges and an additional charge of dealing with property suspected of being the proceeds of crime with a value less than $100,000 contrary to s 193C(2) of the Crimes Act has been added. Those three charges are before Liverpool Local Court on 5 December 2023. No pleas have yet been entered.

79. The position is, therefore, that the defendant is in custody, parole revoked, and is also in custody on remand for the new offences. He made an unsuccessful application for bail to this Court.

80. In my opinion, the sentence to be imposed on the defendant should commence today. The principle of totality does not suggest any other course is appropriate. The defendant has not been in custody at any time in respect of the contempt charge. There was no connection between the offending for which he was serving a sentence at the time of the contempt and the contempt itself. There is, therefore, no basis for backdating the sentence.

74. The parole for those offences (the armed robberies) had expired by the time he was charged with contempt. He had been released to parole for the sentence imposed in 2022 (the assault occasioning actual bodily harm). Although his parole was revoked because he was charged with further offences in May 2023, that revocation is subject to review from time to time. It does not, therefore seem appropriate, when he could be released to parole again at any time, to commence the present sentence on a date after today (I note that s 47 of the Sentencing Act has no application here to prevent that).

75. The recently charged offences remain undetermined. The issue of totality will be a matter for the Magistrate, if and when he is sentenced for those offences, bearing in mind the sentence that I intend to impose for the contempt charge.

76. Accordingly, I make the following declaration and order:

1. A declaration that the defendant is guilty of contempt of the Local Court of New South Wales in that, on 16 June 2021, he, who had been served with a subpoena to attend the Local Court at Burwood to give evidence for the prosecution in criminal proceedings, wilfully refused to attend the Court on that date to give evidence.

2. An order that the defendant be committed to a correctional centre for a period of 6 months to commence on 30 November 2023 and expire on 29 May 2024.

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Decision last updated: 30 November 2023